The moral from Sorrell: educate, don't legislate.

Abstract

This Article argues that in response to the United States Supreme Court's 2011 decision in Sorrell v. IMS Health Inc., state legislators should refrain from enacting prescription confidentiality laws and instead implement policies supporting academic detailing, a form of continuing medical education in which trained health professionals such as physicians, registered nurses, advanced practice nurses, and pharmacists provide evidence-based information about prescription drugs to prescribers. According to Sorrell, pharmaceutical companies may freely use physicians' prescribing data to better promote, or "detail," products to physicians without government interference. While pharmaceutical companies may profit from detailing drugs to physicians, detailing increases health care costs for patients and negatively affects patient health outcomes. These problems motivated Maine, New Hampshire, and Vermont to enact prescription confidentiality laws that banned the use of information about the prescribing habits of physicians to help market drugs to physicians. Recent state attempts to stop drug detailing to physicians have been found to violate the First Amendment. This Article provides a history and background on the pharmaceutical-detailing process and analyzes recent legal decisions relating to prescription confidentiality. It concludes that academic detailing is a viable solution to the negative effects of pharmaceutical detailing and is consistent with the First Amendment.